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AUSTRALIA’S NATIONAL INTEREST AND THE IMMIGRATION HEALTH TEST[1]
Joanne Kinslor
Australia’s immigration system is unashamedly focused upon Australia’s self interest above that of non-citizens or of global or international concerns. The object of the Migration Act is “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”.[2] (my emphasis)
Apart from our refugee and humanitarian programme (where we have determined that it is in Australia’s interest to give primacy to the protection of refugees and others suffering severe human rights abuses over direct benefits to Australia[3]) Australia has crafted its visa requirements to maximise benefits to Australia (including members of Australian society) and minimise costs to Australian society. This process involves direct and indirect discrimination on a number of bases, as Australia prioritises which non-citizens will be granted visas on the basis of criteria designed to maximise the benefit to be received by Australia. To the extent that human rights concerns can be given effect along with other national priorities, particularly economic priorities, these concerns are accommodated in various forms throughout our immigration system. However, the primary object of Australian immigration legislation is not directed towards giving effect to international human rights law or advancing human rights norms.
Discussion of Australia’s immigration health test needs to be set within this context. Until Australia adopts an open border approach or decides to increase its migrant intake beyond the number of non-citizens wishing to migrate it should be recognised that our immigration system is fundamentally discriminatory in its selection of temporary and permanent residents that it hopes will best serve Australia’s national interest. The health test is but one way in which Australia distinguishes between desired and non-desired migrants.
Nevertheless, without going outside this broad framework of Australia’s immigration system, there is much room for debate and much scope for varying concerns to be incorporated within Australia’s ‘national interest’. In introducing public hearings the Chair of the Joint Standing Committee on Migration Inquiry into Immigration Treatment[4] of Disability (‘the Inquiry’) focused upon a broad notion of Australia’s national interest, saying:
“This is a vexed area of migration policy and the Committee will be examining whether our current rules really are in Australia’s interest as a forward-looking, inclusive and productive society”, Mr Danby said.[5]
Michael Danby MP’s acknowledgement that deciding immigration health requirements is a “vexed area” is an important step for Australia to develop a better immigration health test that addresses a broader scope of matters promoting Australia’s national interest.
Perhaps one of the most troubling aspects of the operation of Australia’s immigration health test over recent years is that the test has not even permitted a proper consideration of the personal and societal costs of the application of the test. For the majority of visas public interest requirement 4005 has operated so that a largely unquestionable and often unreasoned statement of health costs by the Medical Office of the Commonwealth bars visa applicants, without any scope for discourse as to the public interest or human cost relevant in a particular case. The 4007 health waiver provides decision makers with a discretion, but it operates in a largely non-transparent manner without legislative direction as to matters that should be taken into account and is required at a low threshold of “significant cost”. With respect, the Department’s comment below demonstrates a disturbing ignorance or denial of the effect of Australia’s immigration health test. In its submission to the Joint Standing Committee the Department states:
In considering changes discussed in this submission[6] and raised in other submissions to the Committee, it may be useful to reflect on the fact that the current arrangements have, prima facie, been effective, and with the exception of recent issues raised in relation to people with a disability, been largely non-controversial for at least the past 20 years.[7]
That there have been limited cases attracting headlines and generating substantial petitions of support from across the Australian community as in the case of Dr Moeller[8] does not establish that there is a unity of views amongst the Australian community as to the operation of the health test. Rather, in my view, it is a consequence of a test that has largely operated without a balancing of views, with a lack of transparency in relation to the decision-making process, which makes many arguments futile and creates hopelessness for visa applicants.
Of course, there are different components of the immigration health test and it is not all components that attract a plethora of divided views. I am not aware, for example, of any significant disagreement that the health test should seek to prevent “a threat to public health in Australia or a danger to the Australian community”. However, the Joint Standing Committee has publicly recorded significant controversies and vexing issues with respect not only to the focus of the Inquiry, being how the immigration test operates in relation to persons with disabilities, but also the operation of the immigration health test generally. These concerns include the harsh nature of the immigration health test, the lack of transparency and accountability with the decision-making process and the considerations taken into account (or lack thereof) through the operation of the immigration health test. Reforms to the way in which health requirements operate in the area of onshore skilled sponsored migration may be viewed as a response to some of the criticisms articulated before the Inquiry, such as concerns that an assessment as to whether health care costs are undue should take into account a broad range of costs and benefits. This paper looks at these reforms in detail and seeks to evaluate the reforms, especially by reference to issues raised before the Joint Standing Committee Inquiry.
HEALTH WAIVERS AND ONSHORE SKILLED SPONSORED MIGRATION
Schedule 2 requirements for subclass 846 (State Territory Sponsored Regional Established Business in Australia), 855 (Labour Agreement), 856 (Employer Nomination Scheme) and 857 (Regional Sponsored Migration Scheme) were amended in October 2006[9] so that the applicable health test to be satisfied is 4007 in circumstances where “the applicant resides or proposes to reside in a participating State or Territory”[10], rather than the usual skilled visa health requirement of 4005 (which allows for no consideration other than whether the health test is met by all members of a visa applicants family). A “participating State or Territory” is defined in Schedule 2 (Interpretation) as a “State or Territory specified by the Minister in an instrument in writing for this clause.” No agreement was reached with a state or territory until 2009[11] and, by consequence, no waiver was available for several years after the regulatory amendment. The current instrument is IMMI 09/131[12], which has operated since November 2009. It lists every state and territory in Australia apart from New South Wales, which I understand is still considering the scheme. In its submission to the Inquiry in December 2009 the NSW Government stated that “NSW agreed to participate in the scheme on 18 August 2009, subject to the finalisation of the MOU (Memorandum of Understanding with the Australian Government) and Guidelines.”[13]
With respect to the scope of New South Wales residents to access a 4007 waiver now (I note that the Department has been offering to delay decision-making in New South Wales while the NSW Government decides whether to become a participating state[14]), the Regulations allow for waiver where an applicant does not reside in a participating State or Territory, but instead “proposes to reside” there. While such a proposal would need to be believable (presumably on account of the location of a job offer or relevant business being in a participating state or territory) New South Wales residents may conceivably be granted a 4007 waiver under the current scheme (as discussed below that for persons failing the health test for costs of less than AUD 100,000 no specific reference to the relevant state or territory government will be made under policy prior to such a decision being made). In this regard it is notable that the permanent resident visas within the scheme are not subject to any conditions (such as place of residence or employment) and that only the subclass 857 (Regional Sponsored Migration Scheme) visa is liable to be cancelled on account of a failure to commence or continue employment in the location specified in the visa application: refer section 137Q.[15] Therefore, a genuine proposal not realised may be sufficient under the scheme.
In addition, a visa applicant who is residing in a participating State or Territory at the time of visa processing does not at law need to establish that she or he will do so in the future. In such cases the Department has available a 4007 waiver which it may chose to exercise in the circumstances of the case.
Memorandums of Understanding
The Federal Government is in various stages of negotiation with participating state and Territory Government’s regarding the terms of individual Memorandums of Understanding (MOUs). The MOUs are designed to formalise agreements between the Federal Government and participating States and Territories about how the scheme will operate, including matters such as mechanisms for transmission of information, service standards, reporting requirements, specific privacy law issues, the scope of comments to be provided by a participating State or Government and the text of the recommendation that the participating State or Government will provide. The MOUs have no legislative force and I understand that they will not form part of the Regulations or be included in PAM. However, it seems likely to me that a copy of the MOUs could be obtained through a Freedom of Information application.
The Operation of the Scheme
DIAC has developed a flowchart outlining the skilled health waiver decision-making process that it has adopted, which I have copied at Annexure A.
Onshore Skilled Sponsored Visas Only
Given the visas that this scheme covers, a 4007 waiver is only available for onshore applicants applying for onshore permanent resident visas. A Department delegate assessing these waiver applications explained to me that this fact (of the scheme only being available to onshore permanent resident applicants) underpinned a central question assessed by the Department in considering waiver applications in being, “What have they (the visa applicant) done in Australia?”. The Department anticipates that in most cases an applicant will be applying for residence after having spent time in Australia and being able to demonstrate what contribution they have made to Australia. The concern is not limited to a contribution across Australia at a national level. It may be expressed within a local context.
Unless there has been a change of circumstance for the main applicant or her or his family (such as the development of a health issue), that applicants are applying onshore will generally mean that the temporary visa held by the visa applicant has been granted on the basis of some sort of health waiver provision, or been recognized only since the last visa was granted (noting that medical examinations may not be required for a temporary visa). Usually the visa applicant/s will be in Australia on a sponsored 457 where the Minister has exercised a 4006A waiver after the Australian sponsoring employer has provided an undertaking to “meet all costs related to the disease or condition that causes” an applicant to fail the health test.[16]
Significantly, the terms of the 4006A waiver, where the critical assessment is made by the Australian employer, are completely different to the terms of a 4007 waiver where the Department assesses whether waiver is in the public interest. PAM directs that an assessment under 4007 requires a delegate to “weigh up the possible impact on the Australian community and the health care system of granting a visa against the underlying purpose of the visa subclass, the mitigating factors and the individual compassionate and compelling circumstances of the applicant.” Unlike 4006A where a sponsoring employer, in effect, can be accepted as wiping out costs to the Australian community through an undertaking, 4007 requires all costs as assessed by the Medical Officer of the Commonwealth (which will include costs “regardless of whether the health care of community services will actually be used in connection with the applicant”) to be weighed against “acceptable (being at an appropriate standard) and plausible actions to mitigate” care needs by sponsors or family members or others.
Broad Outline of Considerations Relevant to Waiver
While humanitarian, compelling or compassionate factors may be relevant in a particular case and would be a relevant factor for consideration of 4007 waiver, it is noteworthy that PAM directs a delegate to focus upon “the underlying purpose of the visa subclass”. If the rationale of the immigration health test is to minimise costs to Australia and the Australian immigration system is directed towards maximising benefits to Australia it is logical that health waivers be assessed relative to other visa applicants of the same visa subclass. This is not only because the requirements of visa subclasses are designed to give effect to Government policies advancing the national interest, but also because the net benefit to Australia of a particular applicant with health costs will only be equivalent to the benefit of an applicant without health costs if the benefit they provide (without taking into consideration health costs) is greater than that of an applicant without health costs- although quite apart from considerations of health costs there will be variations between applicants which are impractical to address or ignored by legislators and policy makers.